Asato v. Furtado, 4913

• Decision Date: 08 September 1970
• Docket Number: No. 4913,4913
• Citation: 52 Haw. 284,474 P.2d 288
• Parties: Toshio ASATO and Ellen M. Asato v. Thomas S. FURTADO.
• Court: Hawaii Supreme Court

Page 288

474 P.2d 288

52 Haw. 284

Toshio ASATO and Ellen M. Asato v. Thomas S. FURTADO.

No. 4913.

Supreme Court of Hawai'i.

Sept. 8, 1970.

Syllabus by the Court.

1. When a prior conconsistent statement is offered to impeach a witness, and the claimed inconsistency rests on an omission to state previously a fact now asserted, the inconsistency is sufficiently shown by the omission if the prior circumstances were such that the speaker could have been expected to state the omitted fact, either because he was then asked specifically about it, or because he was then purporting to render a full and complete account of the transaction or occurrence and the omitted fact was an important and material one, so that it would have been natural to state it.

2. The justifiable inference that may be drawn from such an omission, that the omitted fact was omitted because it did not exist, may be rebutted.

3. In this case, the circumstances surrounding the prior statement show a sufficient inconsistency, since the prior statement was made by the witness while testifying in his own behalf, in criminal proceedings based on the same transaction involved in this suit, where the sequence of events was gone into thoroughly by counsel, and the defendant purported to give a full and complete account of the occurrence, and the omitted fact was an important and material one.

4. A judgment of conviction in a prior criminal trial is admissible as Prima facie evidence of the facts upon which it was necessarily based, in a subsequent civil suit based on the same transaction, where (1) it is shown that the issue on which the judgment is offeed was necessarily decided in the prior trial, (2) a judgment on the merits was rendered in the prior trial, and (3) the party against whom the judgment is now offered had a full and fair opportunity to litigate the claim in the prior trial, and especially to contest the specific issue on which the judgment is offered, so that he had a full and complete 'day in court' on that issue.

5. This rule of admissibility is intended to allow into evidence those judgments that, based upon the nature of the proceedings, seem to be reliable and trustworthy indicators of guilt, and to exclude those judgments that seem unreliable because based upon perfunctory or half-hearted proceedings. The great majority of minor traffic convictions, often decided with an eye to convenience rather than truth, are a good example of the latter category.

6. Where as in the present case, a defendant has had a jury trial, was represented by counsel, cross-examined witnesses, and was convicted by a unanimous jury beyond a reasonable doubt, the judgment based upon the conviction can reasonably be given some evidentiary weight in a later civil suit based on the same transaction.

7. In every case where a witness is sought to be impeached, the only issue raised is whether the witness is telling the truth. Evidence offered for impeachment must therefore go to the issue of truth and veracity of the witness in order to be relevant. If not relevant, it is inadmissible, even under HRS § 621-22, which allows witnesses to be discredited by inquiries as to conviction of 'any indictable or other offense.'

8. Many convictions of crimes have no probative value on the issue of credibility, and are therefore irrelevant and inadmissible for purposes of impeachment. A prior conviction is admissible only if the trial judge in his discretion feels that the party offering the evidence has satisfactorily shown that the conviction to be and careless driving bears no rational connection on the issue of truth and veracity.

9. Clearly, a conviction for heedless and careless driving bears no rationalconnection to credibility, and such a conviction was therefore properly excluded by the trial court when offered for impeachment.

Burnham H. Greeley, E. John McConnell, Jr., Honolulu (Padgett, Greeley, Marumoto & Akinaka, Honolulu, of counsel), for appellants.

Anthony Y. K. Kim, Honolulu (Henshaw, Conroy & Hamilton, Honolulu, of counsel), for respondent.

Before RICHARDSON, C. J., ABE, LEVINSON, and KOBAYASHI, JJ., and VITOUSEK, Circuit Judge, for MARUMOTO, J., disqualified.

RICHARDSON, Chief Justice.

This is an appeal by plaintiffs Toshio Asato and Ellen M. Asato from a jury verdict in favor of defendant Thomas S. Furtado in a personal injury suit arising out of an automobile accident. The relevant facts are as follows: Prior to the collision, plaintiffs were driving Ewa on the Lunalilo Freeway in the center lane of three lanes. Defendant was also driving Ewa in the lane closest to the medial strip. There was a collision between plaintiffs' car and defendant's car, after which plaintiffs' car broke through the cyclone fence in the medial strip and came to rest in the Koko Head-bound lanes of the freeway. The Asatos testified that up until the time of the collision, they were proceeding normally in the center lane, but that the collision caused Mr. Asato to lose control of the car.

Plaintiffs sued defendant for personal injuries and property damage, claiming that his negligence was the proximate cause of their personal injuries and the damage to their vehicle. Defendant counterclaimed against plaintiffs, claiming that one or both of them were negligent and that their negligence caused the accident. He denied that he had been negligent. He testified that he had been blinded by lights coming from the direction of the medial strip, and that before he could do anything, he hit something, which turned out to be plaintiffs' vehicle.

Based upon the same accident, but before the civil suit was tried, defendant was convicted by a jury of the offense of heedless and careless driving, a violation of HRS § 291-1. This conviction is the focus of the main points raised on this appeal.

First, plaintiffs offered, but were not allowed, to introduce the transcript of defendant's testimony at the prior trial to impeach his testimony at the subsequent civil trial. At the civil trial, defendant testified that just before the impact, the sequence of events was that he heard a crash, then he was blinded by bright lights coming from the direction of the medial strip, and then he hit something. Plaintiffs sought to use the transcript of the prior criminal trial in order to show that in those proceedings defendant had omitted to mention anything about a crash before he was blinded and his something. Plaintiffs argued that this was a material inconsistency between defendant's two accounts of the accident, which would make it admissible for impeachment as a prior inconsistent statement under HRS §§ 621-23 and 621-24. The trial court refused to allow the transcript on the ground that there was no inconsistency shown, saying that all that appeared was the defendant's omission to mention the crash at the criminal trial.

Plaintiffs also attempted to bring before the jury the fact of the conviction itself. They argued that it should be admitted for purposes of impeaching the credibility of the defendant, under HRS § 621-22, and as substantive evidence of negligence. The trial court refused to allow the evidence of the conviction for either purpose.

The jury found in favor of the defendant on plaintiffs' claim, and in favor of plaintiffs on defendant's counterclaim. Plaintiffs moved unsuccessfully for a new trial, on several grounds, after the jury verdict against them; but we need not consider those motions because we reverse and remand for new trial on the basis of two of the three other points raised above.

I. Admission of the Transcript for Impeachment

It is not disputed by the parties that a prior inconsistent statement may be used to impeach the credibility of a witness, if a proper foundation is laid, in accordance with HRS §§ 621-23 and 621-24. The dispute here centers around whether or not defendant's two accounts differ in such a way as to render them inconsistent. Whether an omission to state previously a fact now asserted constitutes an inconsistency, sufficient to allow the previous statement to be shown, depends upon the circumstances under which the prior statement was made. Not every omission will constitute such an inconsistency. But where the prior circumstances were such that the speaker could have been expected to state the omitted fact, either because he was asked specifically about it, or because he was purporting to render a full and complete account of the transaction or occurrence, and the omitted fact was an important and material one, so that it would have been natural to state it, the omission gives rise to a justifiable inference that the omitted fact was omitted because it did not exist. Langan v. Pianowski, 307 Mass. 149, 151, 29 N.E.2d 700, 701 (1940); Erickson v. Erickson & Co., 212 Minn. 119, 125, 2 N.W.2d 824, 827 (1942); 3 Wigmore, Evidence § 1042 (3rd ed. 1940); 1 Greenleaf, Evidence § 462a (16th ed. 1899).

The inference is of course not conclusive, and the trier of fact need not draw it; but it is a justifiable inference, and in proper circumstances a party should be allowed to make use of it.

We think that such circumstances were present here. In the prior trial, the defendant took the stand in his own behalf and was thoroughly questioned about the circumstances of the accident. The sequence of events was covered more than once by counsel in those proceedings, and the defendant purported to give a full and complete account of it. Furthermore, we think that the fact of the crash was an important and material fact. Its presence could make a significant difference to a trier of fact in the determination of exactly who was negligent in this rather confusing and ambiguous fact situation. A crash prior to the collision of the defendant's and plaintiffs' cars could give rise to an inference, for example, that plaintiffs were not, as they contended, proceeding normally within the center lane right up until the moment of impact with the...